Temporary ban on development looks likely for Highland Lake

posted Sep 11, 2017, 4:19 PM by Joseph Bickard

WINDHAM — The Windham Town Council appears poised to pass a 180-day moratorium on certain development around Highland Lake in response to concerns about the health of the watershed and the possible impact of several proposed development projects.

The Windham Town Council debated a draft moratorium at its Sept. 5 meeting that would acknowledge the tenuous water quality situation at Highland Lake and would temporarily ban certain development activities in the watershed area.

The activities that would fall under the moratorium, if passed, include “clearing, earth moving or removal of vegetation” from any area larger than 500 square feet; the installation or expansion of a new subsurface or other wastewater disposal system (except when replacing a system that is failing or likely to fail); the construction of more than 500 square feet of driveway, parking, or patio surfaces; and the construction of new private roads.

“We have to figure out what the problem is, we have to look and see how to rectify the problem,” said Council Vice Chairman David Nadeau, who noted that he lives on the lake. “There’s a lot of things to do.”

“I want to be really clear, we’ve got a problem with that lake,” Councilor Donna Chapman said. “I’m not going to be responsible for killing the lake.”

Chapman also stressed the importance of gathering more data on the health of Highland Lake and potential impacts.

“Data numbers don’t lie. People do, but numbers don’t,” she said.

One of the town’s lawyers, Kristin Collins of law firm Preti Flaherty, outlined a draft moratorium that town legal counsel developed based on councilor comments from the Aug. 22 meeting.

All six of the councilors present Tuesday night indicated some level of support for the draft moratorium. There was no formal vote Tuesday night.

The council also asked to clarify some of the language in the draft moratorium, and suggested that the enactment date be made retroactive to Tuesday (Sept. 5), which would likely stall – at least for the time frame of a moratorium – any projects that haven’t yet received final approval from the town.

“Today is the day, we draw a line in the sand,” Councilor Jarrod Maxfield said about setting the retroactive enactment date.

“Is it possible to enact a moratorium that stops everything regardless of where it is in the process? Legally, can we do that?” asked Councilor Robert Muir at one point during the discussion. “If we get sued, we get sued – but is it possible for us to do that, to stop everything?”

Collins said that is was possible, as long as the council makes the intent clear and has a rational reason to support it. 

Council Chairman Dennis Welch was absent Tuesday night. Based on the council’s discussion this week, it appears likely that it could vote on the moratorium at next Tuesday’s meeting.

The Highland Lake Association says the moratorium is necessary to protect the long-term health of the watershed, especially at a time when the lake between Windham and Falmouth has been seeing a somewhat mysterious (but temporary) cyanobacteria bloom each year.

Association members applauded the council at the conclusion of their moratorium discussion, and several members came up to thank councilors and town staff afterwards.

Current lake association president Rosie Hartzler addressed the council after the discussion to outline some steps that her group is planning or plans to take to help address the water quality issue, and thanked the council members for their deliberation.

“Obviously on behalf of the Highland Lake Association, I add my vote to pass this moratorium,” Hartzler said. 

The association requested the moratorium at the Aug. 22 council meeting. The group is concerned about two particular proposed developments on or near the lake that they argue could affect the health of the lake.

The project that has received the most attention thus far at council and planning board meetings – and is further along in the review process – is Chase Custom Homes’ proposed Highland Views manufactured housing park and mixed-use development.

At an Aug. 28 Planning Board meeting, the Planning Board unanimously found the Highland Views application complete but declined to provide preliminary approval. Several members indicated that they wanted more information on the potential impact on the lake, including more from the Maine Department of Environmental Protection along with a possible third party engineering review.

While the DEP has not signed off on the project review yet, DEP project manager David Cherry said by phone that state approval could be granted in the coming weeks. He noted there still needed to be an internal DEP review and that something could always change.

“At this point, what’s being proposed does meet the standards,” Cherry said, adding that “we’re planning to issue an approval.”

Lake association members have been concerned that the project plans may not accurately reflect wetlands on the Highland Views site. The developer’s engineer, Jeff Amos of Terradyn Consultants, told the planning board on Aug. 28 that some wetlands had been missed and said it was “regrettable that this issue happened” and that it had been corrected.

A lake association board member said after the Aug. 28 meeting that her group believed there were still more wetlands on the site, but DEP has since gone back  and no more were found. The DEP now believes the wetlands reflected on the updated plans are  accurate., Cherry said.

Even if the DEP were to grant approval in the coming weeks, a town moratorium, if passed next week as outlined by the council Tuesday, would likely block the Highland Views project for now because it has yet to receive final approval from the town Planning Board. 

John Chase, the owner of Chase Custom Homes, alluded to possible legal action over his property rights in an Aug. 13 email to Town Planner Amanda Lessard ahead of an Aug. 28 Planning Board meeting.

An employee at Chase Custom Homes said the company had no comment on the council’s moratorium discussion Tuesday night.

“The laws and ordinance speak for themselves and need to be followed,” Chase said in the Aug. 13 email. “I have my law firm which is a very prominent firm that deals with water and land right issues ready with just a phone call.”

Lake Association board member Dennis Brown made a similar indication at the Aug. 22 council meeting to imply that the association could also take legal action, saying that “the town is in an awkward position, because you may be sued either way.”

“If someone sues us, someone sues us,” Maxfield said Tuesday night. “You guys, the other guy, it doesn’t matter who – we’re going to protect the lake.”

Maxfield also challenged the lake association to work on long-term solutions to improving Highland Lake water quality.

“You’ve really got to band together and find some options on your own, because we can only protect the lake for so long, and we can’t stop people from moving on to it,” Maxfield said. “So, I think this is going to be a good opportunity to come together.”

“You guys got to step up and take care of private roads,” added Nadeau, saying that private roads not being maintained around the lake also contributes to the issue. “Part of this is on you people stepping up to take care of this.”

“The fact of the matter is, without those developments, the problem is here,” Maxfield added.

Matt Junker can be reached at 781-3661 ext. 123 or mjunker@theforecaster.net. Follow him on Twitter: @MattJunker.